Day of Reckoning Approaches for California Net Neutrality Law

Abstract

In 2017, the Federal Communications Commission adopted the Restoring Internet Freedom Order (RIF Order), which repealed the Commission’s two-year-old net neutrality restrictions. This action spawned a flurry of activity in state legislatures that sought to re-impose those restrictions at the state level and subject the RIF Order to a death by a thousand paper cuts. Nowhere was this state activity more prominent than California, where Senate Bill 822 became a vehicle for net neutrality advocates not only to resurrect the requirements of the now-defunct 2015 Open Internet Order, but also to impose additional regulations that even the Obama-era FCC had rejected.

Unsurprisingly, the Justice Department challenged SB-822 in federal court in California, arguing that federal law preempted the state’s attempt to regulate the Internet from Sacramento. In response, California agreed to voluntarily stay enforcement of the statute while the D.C. Circuit heard Mozilla v. FCC, which was considering the validity of the FCC’s RIF Order. For almost two years, California’s bold net neutrality initiative has been in limbo, with supporters and critics alike waiting to see if the bill will ever amount to more than (in one commentator’s words) a “publicity stunt.”

With the Mozilla litigation now complete, the day of reckoning is approaching – and the California court is likely to find that much, if not all, of SB-822 is preempted. At a minimum, the Communications Act expressly preempts most of the regulations that SB-822 places on wireless companies. More generally, the state law interferes with the carefully calibrated federal broadband policy determined in the RIF Order, and on that basis should face conflict preemption by the Supremacy Clause. These claims, which Mozilla left open, are fatal to much, if not all, of California’s attempt to regulate broadband network management practices.